From the Title I Technical Assistance Manual Section V. Nondiscrimination in the hiring process: Recruitment, Applications, Pre-employment Inquiries, Testing
5.5 Pre-Employment Inquiries
The ADA Prohibits Any Pre-Employment Inquiries About a Disability.
This prohibition is necessary to assure that qualified candidates are not screened out because of their disability before their actual ability to do a job is evaluated. Such protection is particularly important for people with hidden disabilities who frequently are excluded, with no real opportunity to present their qualifications, because of information requested in application forms, medical history forms, job interviews, and pre-employment medical examinations.
The prohibition on pre-employment inquiries about disability does not prevent an employer from obtaining necessary information regarding an applicant's qualifications, including medical information necessary to assess qualifications and assure health and safety on the job.
The ADA requires only that such inquiries be made in two separate stages of the hiring process.
1. Before making a job offer.
At this stage, an employer:
- may ask questions about an applicant's ability to perform specific job functions;
- may not make an inquiry about a disability;
- may make a job offer that is conditioned on satisfactory results of a post-offer medical examination or inquiry.
2. After making a conditional job offer and before an individual starts work
At this stage, an employer may conduct a medical examination or ask health-related questions, providing that all candidates who receive a conditional job offer in the same job category are required to take the same examination and/or respond to the same inquiries.
Inquiries that may and may not be made at the pre-offer stage are discussed in the section that follows. Guidance on obtaining and using information from post-offer medical and inquiries and examinations is provided in Chapter VI.
5.5(a) Basic Requirements Regarding Pre-Offer Inquiries
- An employer may not make any pre-employment inquiry about a disability, or about the nature or severity of a disability: 1)on application forms, 2)in job interviews, 3) in background or reference checks.
- An employer may not make any medical inquiry or conduct any medical examination prior to making a conditional offer of employment.
- An employer may ask a job applicant questions about ability to perform specific job functions, tasks, or duties, as long as these questions are not phrased in terms of a disability. Questions need not be limited to the "essential" functions of the job.
- An employer may ask all applicants to describe or demonstrate how they will perform a job, with or without an accommodation.
- If an individual has a known disability that might interfere with or prevent performance of job functions, s/he may be asked to describe or demonstrate how these functions will be performed, with or without an accommodation, even if other applicants are not asked to do so; however,
- If a known disability would not interfere with performance of job functions, an individual may only be required to describe or demonstrate how s/he will perform a job if this is required of all applicants for the position.
- An employer may condition a job offer on the results of a medical examination or on the responses to medical inquiries if such an examination or inquiry is required of all entering employees in the same job category, regardless of disability; information obtained from such inquiries or examinations must be handled according to the strict confidentiality requirements of the ADA. (See Chapter VI.)
5.5(b) The Job Application Form
A review of job application forms should be a priority before the ADA's effective date, to eliminate any questions related to disability.
Some Examples of Questions that May Not be Asked on Application Forms or in Job Interviews:
Have you ever had or been treated for any of the following conditions or diseases? (Followed by a checklist of various conditions and diseases.)
Please list any conditions or diseases for which you have been treated in the past 3 years.
Have you ever been hospitalized? If so, for what condition?
Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?
Have you ever been treated for any mental condition?
Is there any health-related reason you may not be able to perform the job for which you are applying?
Have you had a major illness in the last 5 years?
How many days were you absent from work because of illness last year?
(Pre-employment questions about illness may not be asked, because they may reveal the existence of a disability. However, an employer may provide information on its attendance requirements and ask if an applicant will be able to meet these requirements. [See also The Job Interview below.])
Do you have any physical defects which preclude you from performing certain kinds of work? If yes, describe such defects and specific work limitations.
Do you have any disabilities or impairments which may affect your performance in the position for which you are applying?
(This question should not be asked even if the applicant is requested in a follow-up question to identify accommodations that would enable job performance. Inquiries should not focus on an applicant's disabilities. The applicant may be asked about ability to perform specific job functions, with or without a reasonable accommodation. [See Information That May be Asked, below.])
Are you taking any prescribed drugs?
(Questions about use of prescription drugs are not permitted before a conditional job offer, because the answers to such questions might reveal the existence of certain disabilities which require prescribed medication.)
Have you ever been treated for drug addiction or alcoholism?
(Information may not be requested regarding treatment for drug or alcohol addiction, because the ADA protects people addicted to drugs who have been successfully rehabilitated, or who are undergoing rehabilitation, from discrimination based on drug addiction. [See Chapter VI. for discussion of post-offer inquiries and Chapter VIII. for drug and alcohol issues.])
Have you ever filed for workers' compensation insurance?
(An employer may not ask about an applicant's workers' compensation history at the pre-offer stage, but may obtain such information after making a conditional job offer. Such questions are prohibited because they are likely to reveal the existence of a disability. In addition, it is discriminatory under the ADA not to hire an individual with a disability because of speculation that the individual will cause increased workers' compensation costs. (See Chapter IV, 4.5(3), and Chapter IX.)
Information about an applicant's ability to perform job tasks, with or without accommodation, can be obtained through the application form and job interview, as explained below. Other needed information may be obtained through medical inquiries or examinations conducted after a conditional offer of employment, as described in Chapter VI.